Cruel and All Too Usual
The National Law Journal
June 28, 1999
Cruel and All Too Usual
By Gillian Metzger
American has gradually rid itself of arbitrary and discriminatory restrictions on the right to vote. Constitutional amendments and Supreme Court decisions granted the vote to women, 18-to-20-year-olds and the poor, and the Voting Rights Act of 1965 ensured that minorities could in reality exercise their theoretical voting rights. Yet one restriction of the franchise continues to exist largely unremarked: state laws that deny the vote to convicted criminal offenders.
Felon disenfranchisement laws exist in all but three states, and most apply to those who have been released as well as those still serving time. Twenty-nine states disenfranchise felons on parole, and 32 states disenfranchise those on probation. Fourteen states go so far as to disenfranchise criminal offenders permanently-long after they have served their sentences and are no longer under any supervision. Restoration of civil rights is often technically available, but in practice it rarely happens because of restrictive eligibility rules and procedural hurdles. In 16 states, offenders tried under federal law are ineligible to vote.
According to “Losing the Vote,” a report issued last fall by The Sentencing Project and Human Rights Watch, 3.9 million U.S. citizens are unable to vote in federal or state elections because of felon disenfranchisement. This figure includes 1.4 million who have completed their sentences.
One particularly troubling aspect of these laws is their impact on black men, who are arrested, convicted, and incarcerated at disproportionately high rates. Nationally, 13% of black men cannot vote because of these laws. In 10 states, 20% or more have lost this right of citizenship.
Whether there is a case to be made for removing voting rights from felons while they are imprisoned, there can be no legitimate Constitutional basis for disenfranchising them once the state has freed them to reintegrate into society. Denying them the right to participate in the core of democratic governance only raises the barriers to their rehabilitation as law-abiding members of the community.
We are long past the time when it was acceptable concern to claim that convicted felons might use their vote to elect candidates soft on crime. This was once one of the most frequently iterated defenses of felon disenfranchisement laws; but the Supreme Court made clear in Carrington v. Rash, 380 U.S. (1965), that “fencing out from the franchise a sector of the population because of the way they may vote is Constitutionally impermissible.”
Life Sentence
The absence of any legitimate penal rationale for disenfranchising release felons is particularly acute in those states where commission of a felony leads to lifelong exclusion form the polling booth. The situation is yet more irrational because most felon disenfranchisement laws apply to anyone who is convicted of a crime for which imprisonment is a possible sentence, regardless of the sentence they actually receive, the nature of their particular crime or their criminal history.
What civic purpose is served when someone who pleaded guilty to a first offense as a teenager and received probation is permanently denied the vote? Or-to take a crime much in the public eye of late-when a person who submits false testimony in court is treated the same for disenfranchisement purposes as a murderer? Most states take it upon themselves to disenfranchise felons who do not even fall under their penal jurisdiction, such as those convicted in federal court or in the courts of sister states.
Representative John Conyers Jr., D-Mich., recently submitted a bill, H.R. 906, that wold permit felons who are not imprisoned to vote in federal elections. This bill is a good beginning. Although most voter qualifications are established by the states in the first instance or by the Constitution, H.R. 906 falls clearly within Congress’ Constitutional powers. The Constitution expressly grants Congress broad power to supervise federal elections.
Furthermore, because many felon disenfranchisement laws have a disproportionate impact on black men (and, it can be safely claimed, were originally enacted with just that purpose in mind), Congress has the authority to enact H.R. 906 pursuant to its enforcement powers under the 14th and 15th amendments.
It would make a fitting conclusion to 20th century legislation and would be a truly hopeful step if congress acted quickly on H.R. 906 and states cleaned up their laws so that those who have served their punishment can take the healthy step of reassuming the rights and responsibilities of citizenship.
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ABOUT THE AUTHOR
Gillian E. Metzger was a staff attorney at the Brennan Center for Justice at New York University School of Law.
